Congress Takes New Look At Superfund's Many Woes

IT seemed relatively simple in 1980: Identify the few hundred hazardous-waste sites around the country, charge the polluters a fee, and clean up the sites. End of problem.

But the Comprehensive Environmental Response, Compensation, and Liability Act, or "Superfund," has become an environmental, bureaucratic, and political nightmare. The list of potential problem sites has grown to about 35,000 and continues to grow. Of the more than 1,200 or so worst sites (those on the "National Priorities List"), just 54 have been cleaned up to the point at which they are off the list. And only another 164 have had cleanup construction completed despite tens of billions of dollars spent from public and private sources.

Of those billions, most of the money - 70 percent by some estimates - has gone for lawsuits, making it what some cynics call "the attorneys' endowment fund."

"Superfund has become the program everybody loves to hate," says Rep. Al Swift (D) of Washington, who chairs the House subcommittee that deals with hazardous materials.

Carol Browner, the Environmental Protection Agency (EPA) administrator, points to some good results from the law: thousands of short-term cleanups that have reduced public-health risks, more voluntary efforts by businesses and municipalities to prevent pollution, and the development of new hazardous-waste control and cleanup technologies. Cleanup cost staggering

Still, Ms. Browner said in recent Senate testimony: "The job we face cleaning up hazardous-waste sites seems more formidable than ever." By the time all sites are made safe, according to some estimates, the total cost could reach $1 trillion.

Superfund - the largest EPA program - is up for congressional reauthorization this year, and the way lawmakers deal with it in coming months could affect most everyone in this country.

Sen. Frank Lautenberg (D) of New Jersey, who chairs the Senate subcommittee that oversees the law, points out that 41 million Americans live within four miles of a hazardous-waste site.

Much of the costs to date have gone to settle legal disputes between corporations charged with pollution and their insurance companies. Among the issues here is whether cleanup costs constitute "damages" under liability-insurance policies. Everyone affected

"The American legal system faces an environmental liability-insurance crisis," Kenneth Abraham, a University of Virginia law professor, told an American Bar Association meeting last month. "It is a very substantial drag on the economy [which] affects everybody because indirectly it adds to the cost of almost everything."

Part of the problem, critics say, is that Superfund's principle of "make the polluter pay" sweeps the relatively innocent and blatantly guilty into the liability net. Its "joint, several, and retroactive" provisions mean that minor parties can be just as liable as major polluters.

In some cases, a property buyer can be held as responsible as a prior owner who did the polluting - and may now be bankrupt or difficult to find.

"Literally, everyone touched by Superfund's liability complains about its inequities," says John Johnstone, board chairman and chief executive officer of the Olin Corporation and spokesman for the Coalition on Superfund, a group of manufacturing, chemical, and insurance companies. "It forces responsible parties - sometimes hundreds of them at an individual site - to spend enormous resources protecting their interests in court, rather than working at sites."

In her testimony, Browner posed what she called "the most vexing question of all: How clean is clean?"

"Should cleanups allow some contamination to remain if public health is protected, or should all sites be restored to their original state, no matter what the cost?" she asked. "Should the level of cleanup of land and ground water be dependent to some extent on the post-cleanup use of those resources?"

This latter point is one that "potentially responsible parties," as many corporations now find themselves categorized, would like to see addressed in Superfund reform.

In other words, they assert, if another manufacturing plant is going to be built on a hazardous-waste site, then it should not have to be returned to a pristine state. Environmentalists see this argument as an excuse to get around the law.

Superfund sprung from the 1978 controversy at Love Canal in upstate New York. Over the years, concern about other toxic-waste sites has prompted a large and rapidly growing grass-roots environmental movement. Because blacks and Hispanics are nearly four times as likely to live near a hazardous-waste site as others, the issue has also spawned an "environmental justice" movement.

Industrial and municipal-waste sites account for most of the problem. (City landfills number 238 sites on the National Priorities List.) But it has become clear that Uncle Sam is one of the worst polluters. Physicians for Social Responsibility reported last week that some 11,000 sites at 900 Defense Department and Energy Department facilities are contaminated with chemical or radioactive materials, or both. Reforming program

Browner has set up a working group of experts from businesses, governments, environmental groups, and universities to advise her on improving Superfund.

Mr. Lautenberg, who will play a key role in reauthorizing the program, says reform must be based on: speeding up cleanups (which now average more than 10 years), spending less money on lawyers and more on making hazardous-waste sites safe, ensuring fairness for small business and municipalities, and eliminating "the waste, fraud, and abuse that has squandered cleanup dollars and slowed cleanups."